Full case report

Financial Times Ltd & Ors v United Kingdom

Reference Application no. 821/03
Court European Court of Human Rights

Judge Garlicki P, Bratza, Bonello, Mijovic, Bjorgvinsson, Bianku, Poalelungi

Date of Judgment 15 Dec 2009


Summary

Article 10 – Freedom of Expression – Journalists’ Sources – Breach of Confidence – Norwich Pharmacal Orders – Whether necessary in a democratic society


Facts

An anonymous source, X, leaked a copy of a confidential Interbrew presentation to various media organisations which subsequently published articles about the content of the document. Interbrew launched Norwich Pharmacal proceedings against the media organisations to gain access to the original leaked document so as to help them identify X. The High Court and Court of Appeal ordered the delivery up of the documents on the basis that it would enable Interbrew to ascertain the identity of the proper defendant to a breach of confidence action and that the interference with Article 10 was justified as ‘prescribed by law’ under Art 10(2). They were particularly swayed by the fact that the evident purpose of X was “maleficent” and “calculated to do harm”. The House of Lords refused the applicants leave to appeal. The applicants complained that the decision of the domestic courts violated their Article 10 right to freedom of expression as their journalistic sources might be identified.


Issue

Whether the order for delivery up of the leaked document constituted an unjustified interference with Article 10 ECHR.


Held

Finding a violation of Art 10:

The Court reiterated that protection of journalists’ sources is one of the basic conditions of press freedom in a democratic society. Without it, the vital ‘public watchdog’ role of the press may be seriously undermined. An order for disclosure of a source cannot be compatible with Art 10 unless it is justified by an overriding requirement in the public interest. The distinction between the disclosure of documents which lead directly to the identification of a source and a document which might, on examination, lead to such identification was not crucial. The chilling effect arises wherever journalists are seen to assist in the identification of anonymous sources. In the current case, Interbrew’s interest in identifying and bringing proceedings against X with a view to preventing further dissemination of confidential information was insufficient to outweigh the public interest in the protection of sources.


Comment

The Court provided important additional guidance in respect of disclosure orders following Goodwin v UK. It stated that the “special nature” of the principle of protection of sources means that no single factor can be decisive in the balancing exercise required under Art 10(2) but must be considered in the context of the case as a whole. The conduct or purpose of the source, however mala fide, can never be decisive but will merely operate as one of many important factors to be taken into consideration. The same applies to evidence that the leaked document has been doctored by the source, or is inaccurate. In assessing whether a disclosure order is justified in such cases, the steps taken by the journalists to verify the accuracy of the information may be considered. Furthermore, whether the company sought an injunction to prevent disclosure of the confidential or sensitive commercial information prior to publication may be another factor which is taken into account.


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Instructing Solicitors

Clifford Chance for the Applicants; Mr Grainger of the Foreign and Commonwealth Office for the UK